Bechara v Sotrip Pty Ltd (In Liquidation) (No 3)

[2013] QSC 178

SUPREME COURT OF QUEENSLAND

CITATION:

Bechara v Sotrip Pty Ltd (In Liquidation) (No 3) [2013] QSC 178

PARTIES:

BUDDY BECHARA
(plaintiff)

v

SOTRIP PTY LTD (IN LIQUIDATION)
ACN 085 132 378
(first defendant)

and

RELIANCE FINANCIAL SERVICES PTY LTD
ACN 003 478 966
(second defendant)

and

SOTRIP NSW PTY LTD
ACN 139 174 744
(third defendant)

and

RELIANCE FINANCIAL SERVICES PTY LTD (NSW) 
ACN 131 889 766
(fourth defendant)

and

STEPHEN BAKER, AS LIQUIDATOR OF SOTRIP PTY LTD (IN LIQUIDATION)
ACN 085 132 378
(further applicant)

FILE NO:

BS 9372 of 2006

DIVISION:

Trial

PROCEEDING:

Written submissions as to costs

DELIVERED ON:

17 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Jackson J

ORDERS:

1.    Costs of the application to dismiss the amended application filed on 24 May 2013 be costs of the proceeding; and

2.    Costs of the application to set aside paragraph 1 of the order of McMurdo J made on 17 April 2013 be costs in the proceeding.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF ISSUE

Uniform Civil Procedure Rules 1999 (Qld), r 8

COUNSEL:

P Tucker for the first defendant and further applicant
M Ashurst SC & JC Ashcroft for the third and fourth defendants

SOLICITORS:

Brown and Partners Solicitors for the first defendant and further applicant
Dib Lawyers for the third and fourth defendants

1. ACKSON J:J  On 19 June 2013, I dismissed the third and fourth defendants’ oral application to dismiss the amended application filed on 24 May 2013 and I dismissed the first defendant and further applicants’ application to set aside paragraph 1 of the order that McMurdo J made on 17 April 2013.

1. In my reasons I expressed the tentative view that the costs of the hearing on 4 June 2013 should be made costs in the application, meaning the amended application filed on 24 May 2013.  But pursuant to the direction I made on that day the parties have made brief submissions in writing as to costs. 

1. The first defendant and further applicants submit that they were successful in respect of the hearing on 4 June 2013 because the third and fourth defendants’ oral application to dismiss the amended application was dismissed.  That, however, fails to take account of the circumstance that the first defendant and further applicants pressed for an order that paragraph 1 of the order made by Philip McMurdo J on 17 April 2013 be vacated, on which they were unsuccessful. 

1. The third and fourth defendants submit that the appropriate order is that the costs of the hearing on 4 June 2013 be costs in the cause or costs in the applications, relying on the proposition that the outcome should be treated as similar to the grant of an interlocutory injunction pending trial of a proceeding.  They also rely upon delay, which they allege has attended the first defendant and further applicants’ application in the form of the amended application filed on 24 May 2013. 

1. Without accepting the analogy drawn between the present case and an application for an interlocutory injunction or accepting a proposition, in general, that costs of an interlocutory application should be made costs in the proceeding, it seems to me that it is appropriate to make that order for costs in this case.  My reason for doing so is that each side has had some success and that it is therefore appropriate to make that order.  I do not consider delay to be a significant factor.

1. As an aside, although judges in this Court occasionally still make orders in the form of “costs in the cause”, the expression “cause” owes its origin in this State to the now repealed Judicature Act and statutes and rules of court stemming from that time. 

1. Following the introduction of the Civil Proceedings Act 2011 (Qld) there is no relevant statute in Queensland relating to civil proceedings or any rule of court which uses the expression “cause”. It would be better, in my view, if orders for costs were made following the language of the applicable statute and rules. Under the UCPR an originating process comprising a claim, application, notice of appeal or notice of appeal subject to leave starts a “proceeding”.[1]  It would, therefore, be better to adopt the expression “costs in the proceeding” where formerly the expression “costs in the cause” has been used.  I order accordingly:

   [1]UCPR 8.

1.Costs of the application to dismiss the amended application filed on 24 May 2013 be costs of the proceeding; and

2.       Costs of the application to set aside paragraph 1 of the order of Philip McMurdo J made on 17 April 2013 be costs in the proceeding.